Citation Nr: 1700110
Decision Date: 01/04/17 Archive Date: 01/13/17
DOCKET NO. 13-22 617 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a heart disorder, to include as secondary to service-connected irritable bowel syndrome.
2. Entitlement to service connection for a testicular tumor.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. N. Nolley, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1968 to March 1971.
This case comes before the Board of Veterans' Appeals (Board) on appeal of July 2010 and January 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In July 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.
The record before the Board consists of electronic records in systems known as Virtual VA and the Veterans Benefits Management System.
In April 2015, the Veteran filed a claim for compensation pursuant to 38 U.S.C. 1151, based on residuals of a procedure performed at the VA Medical Center in Augusta, Georgia in 1971. The Veteran is advised that his statements do not meet the standards of an intent to file (3.155(b)) or those of a complete claim under 38 C.F.R. § 3.155(a). The AOJ should notify the Veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Heart Disorder
The Veteran asserts that he developed a heart disorder within a year of separation from service. He asserts that he developed a heart disorder in November 1971. In the alternative, he asserts that his heart disorder started in February 1972 following a proctoscopy. He contends that he underwent a proctoscopy on February 16, 1972 and returned hours later in an ambulance due to subcutaneous emphysema. He contends that he was then admitted with an acute myocardial infarction caused by the subcutaneous emphysema.
November 1971 VA treatment records showed that that the Veteran was admitted for evaluation of diarrhea. An electrocardiogram revealed a right ventricular enlargement. A vectorcardiogram was done, but the interpretation was not completed at the time the report was submitted.
VA treatment records also indicated that the Veteran underwent a rectal biopsy on February 16, 1972 and returned to the hospital one hour later with severe chest pain and shortness of breath. He was found to have subcutaneous emphysema, mediastinal emphysema, retroperitoneal emphysema, and perisacral emphysema. The Veteran was treated conservatively and discharged on February 21, 1971.
A July 2001 private treatment record from Clearwater Cardiovascular and Interventional Consultants showed that the Veteran underwent a cardiovascular stress test for evaluation of an abnormal EKG. The echocardiogram showed mild aortic and mitral regurgitation without evidence of inducible ischemia.
The Veteran underwent a VA examination in March 2010. He stated that two hours after his 1971 proctoscopy he developed subcutaneous emphysema and was admitted for an acute myocardial infarction. The examiner noted that the Veteran's history was positive for a myocardial infarction and diagnosed coronary artery disease with no evidence of disease. An echocardiogram was not ordered because there was no evidence of coronary artery disease. The examiner explained that there was no evidence of coronary artery disease or a myocardial infarction and that it was not possible to determine if the Veteran had a myocardial infarction subsequent to a proctoscopy without resorting to speculation.
In August 2013, the Veteran stated that an electrocardiogram completed that month indicated that he had a previous myocardial infarction. He explained that the nurse noted scarring and a right bundle branch block.
The Veteran underwent another VA examination in January 2014. The Veteran reported that he was diagnosed with right bundle branch block caused by a perforated colon in service. An echocardiogram performed in January 2014 did not show evidence of cardiac hypertrophy or dilation. The examiner found that there was no evidence that the Veteran was diagnosed with ischemic heart disease or coronary artery disease. The examiner noted that the medical evidence of record did not show documentation of a myocardial infarction or right bundle branch block.
Upon review, the Board finds the VA examinations inadequate for purposes of determining entitlement to service connection for a heart disorder. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The March 2010 VA examiner found that it was not possible to determine, without resorting to speculation, whether the claimed heart disorder was caused by the 1971 proctoscopy, but did not adequately explain why an opinion would require speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Moreover, the March 2010 examiner's findings are internally inconsistent as the examiner found that the Veteran's past medical history was positive for a myocardial infarction, but found there was no evidence that the Veteran was diagnosed with a myocardial infarction. The examiner also did not order an electrocardiogram. With respect to the January 2014 VA examination, the examiner determined that the medical evidence of record did not show a diagnosis of a myocardial infarction or right bundle branch block. However, it does not appear that the examiner considered the July 2001 abnormal electrocardiogram and the echocardiogram showing mild aortic mitral regurgitation. The examiner also did not address the Veteran's report that an August 2013 electrocardiogram indicated a previous myocardial infarction. Accordingly, a VA examination is required to determine the current nature and etiology of the Veteran's claimed heart disorder.
With respect to the November 1971 hospital course, the Veteran was found to have a right ventricular enlargement, however the results of a vectorcardiogram were not included in the hospital summary. With respect to the February 1972 hospital treatment, VA treatment records documented the Veteran's hospital course after he returned to the hospital following the February 16, 1972 rectal biopsy. The Veteran asserted that he underwent a proctoscopy on February 16, 1972 and returned to the hospital hours later in an ambulance. The treatment records detailing the results of the November 1971 vectorcardiogram, as well as the February 1972 rectal biopsy and/or proctoscopy are not of record. Accordingly, the Board finds that a remand is required to obtain outstanding VA treatment records from the Veteran's November 1971 and February 1972 hospital treatment.
Additionally, in an August 2013 statement, the Veteran reported that a recent electrocardiogram conducted at Morton Plant Hospital showed evidence of scarring and right bundle branch block. He also stated that he was scheduled to see a cardiologist the following month. Such records have not been associated with the claims file. On examination, the RO or AMC must attempt to obtain the August 2013 private treatment records from Morton Plant Hospital, as well as any other outstanding private treatment records.
Testicular Cancer
The Veteran asserts that he developed testicular cancer as a result of an in-service groin injury. He contends that while serving in Alaska he sustained an injury to his groin area which resulted in pain and swelling. He contends that medical treatment for the injury was not documented because of the lack of medical personnel available and the fact that he was a medic.
The Veteran submitted a June 2011 private treatment record from C.B., M.D. Dr. B. noted that the Veteran underwent a radical right orchiectomy in January 2000 due to a testicular tumor that was consistent with papillary cystic tumor of borderline malignancy. Dr. B. opined that the etiology of this type of tumor was unknown, but that 40 percent of the cases were associated with severe testicular trauma. Dr. B. also noted the Veteran's in-service injury and stated that there was a high probability that the trauma caused the tumor to develop.
Generally, a VA medical examination is required for a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in-service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also 38 U.S.C.A. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Board finds the low threshold necessary to provide an examination has been established in this case.
The medical evidence includes a current diagnosis of testicular tumor consistent with papillary cystic tumor of borderline malignancy. The Veteran stated that he sustained an injury to his groin area during service. Dr. B. opined that there was a high probability that the Veteran's testicular tumor was related to the in-service injury. As such, the Board finds the low threshold necessary to provide an examination has been established in this case.
Additionally, the Board notes that the Veteran's service treatment records are incomplete. Specifically, service treatment records from the last nine to ten months of service are not included in the electronic claims file. Thus on remand, the RO must make another attempt to obtain all of the Veteran's service treatment records.
Accordingly, the case is REMANDED for the following action:
1. Undertake appropriate action to obtain the Veteran's complete service treatment records. The request should be made under the Veteran's social security number and his enlistment number.
2. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to specifically include:
(a) the results of the November 1971 vectorcardiogram performed at the Augusta VAMC;
(b) the February 16, 1972 VA treatment records relating to the rectal biopsy and proctoscopy performed at the Augusta VAMC;
(c) the private treatment records from Morton Plant Hospital relating to the August 2013 electrocardiogram.
If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e).
3. Then, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine whether the Veteran has a heart disorder and if so, the etiology of the disorder. Any indicated tests or studies should be performed. If the examiner determines that a heart disorder is currently present or has been present at any time during the pendency of the claim, the examiner should provide an opinion as to whether:
(a) it is at least as likely as not (50 percent or more probable) that the heart disorder originated during service or is etiologically related to service;
(b) the Veteran manifested a heart disorder to a compensable degree during the one year period following his discharge from service in March 1971, specifically, the November 1971 VA treatment record showing a right ventricular enlargement and the February 1972 VA treatment records showing he was admitted for chest pain, shortness of breath, and subcutaneous emphysema shortly after undergoing a rectal biopsy and proctoscopy; and
(c) whether it is at least as likely as not that the claimed heart disorder was caused or permanently worsened by the Veteran's service-connected irritable bowel syndrome.
The examiner must consider and discuss the July 2001 echocardiogram showing a diagnosis of mild aortic and mitral regurgitation as well as the Veteran's August 2013 statement that a recent electrocardiogram showed scarring and right bundle branch block. The examiner must also consider the Veteran's statements regarding the onset of his claimed heart disorder.
The rationale for all opinions expressed must also be provided. The examiner must consider and discuss under what circumstances an individual would develop a heart disorder if the individual underwent a rectal biopsy and proctoscopy and returned to the hospital two hours later with complaints of chest pain/shortness of breath as well as a diagnosis of subcutaneous emphysema. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed.
4. Then, the RO or the AMC should afford the Veteran a VA examination by an examiner with sufficient expertise to address the nature and etiology of the Veteran's testicular cancer. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed.
Following the examination and a review of the relevant records and lay statements, the examiner should state an opinion as to whether his currently diagnosed testicular cancer is at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to include his in-service injury to the groin area.
The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must consider and discuss the Veteran's statements that he experienced pain and swelling in the groin area following an in-service injury.
5. The Veteran must be given adequate notice of the date and place of any requested examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any scheduled examination. The RO or AMC is advised that the Veteran relocated to Charleston, South Carolina and that the VA examinations must be scheduled at the closest VA medical facility. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655.
6. The RO or AMC should also undertake any other development it determines to be warranted.
7. Then, the RO or AMC should adjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or AMC should furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action.
By this remand, the Board intimates no opinion as to any final outcome warranted.
The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).